Rose Atieno Adoyo v Devoter Akeyo Otieno & Zennah Achieng Juma [2017] KEHC 10114 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COUR TOF KENYA AT HOMA BAY

SUCESSION CAUSE NO:  403  OF  2015

IN THE MATTER OF THE  ESTATE OF  JARED  JAGERO KINAGA.......DECEASED

BETWEEN

ROSE ATIENO  ADOYO.............................OBJECTOR

AND

DEVOTER  AKEYO OTIENO................1ST PETITIONER

ZENNAH  ACHIENG  JUMA................2ND PETITIONER

RULING

When JARED JAGERO KINAGA died on the 14th January 2008 at Nyamarindi, DEVOTER AKEYO  and ZENNAH ACHIENG JUMA petitioned for grant of letters to administer his estate.  DEVOTER described herself as the deceased’s daughter in –law and listed her three children namely;-

P A O-  18 Years

J O O-  14 Years

F A-     11 Years

As the surviving beneficiaries.  She indicated in the affidavit in support of the petition that;

‘ The deceased had only one son and did not have any daughter’

Zennah Achieng Juma, (the co-administrator) described herself as an aunt to the deceased.  The letter by the area chief dated 1/12/2014 indicated that Devoter and her three children were the only surviving dependants of the deceased.  They had listed a parcel of land no. KAKSINGRI/WAREGI/1014 as the asset for distribution.

When the existence of this cause came to the knowledge of ROSE OTIENO ODOYO she filed a summons seeking revocation of the grant and requesting that she either be allowed to file a separate cause or be joined as an administrator of the estate.  It was her contention that the grant was fraudently obtained as the petitioner failed to seek her consent before filing the cause.

Further, that the petitioner failed to disclose to the court that the applicant was also a beneficiary by virtue of being the widow of SHELEMIAH ODOYO MIRERI who had bought a piece of land from the deceased.

The applicant annexed a copy of grant issued to her in succession cause No. 112 of 2001 in the matter of the estate of  SHELEMIAH ODOYO MIRERI ,where parcel No; KAKSINGIRI/WAREGI/1014 was listed as one of the assets to devolve to her whole share.  She also annexed a copy of the sale agreement, so it is her contention that the said asset is not available for distribution.

The asset measures 2. 85 Ha. And the sale agreement indicates what was sold to the applicant’s husband was 1 acre.  Does a buyer have a right to be an administrator of a seller’s estate where the deceased’s next of kin is surviving?

Sec 29 of the Saw of succession Act sets out the list of dependants .  The whole purpose of obtaining grant of letters of administration is to enable the person applying to administer the entire estate of the deceased person, and not just one property which has been obtained by way of a purchase.  Certainly a buyer comes last in the line and can only move to court to be allowed to apply for grant of letters after filing and serving a citation and the process concluded.

In the affidavit sworn by DEVOTER dated 9th December 2014, she stated that the deceased’s wife SALOME ANYANGO JAGERO had also died and she annexed a death certificate.  She also presented a letter dated 1/12/2014 written by the chief of KAKSINGIRI CENTRAL location confirming the position she had taken.

As at the time of his demise Jared had not transferred the portion he had sold to Shelemiah - that does not make Shelemiah or his dependants beneficiaries to his estate.  What the applicant Rose Odoyo ought to do is to file a case against the administrators of the estate of JARED JAGERO KINAGA seeking that they execute the relevant documents regarding the sold portion- that is not within the jurisdiction of the High court sitting in a succession cause.

Consequently the prayer sought has no merit and is dismissed.  The applicant/objector shall bear the costs of their application.

Delivered and dated this 2nd day of February, 2017 at Homa Bay.

H.A  OMONDI

JUDGE